J-A08005-15

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellant

v.

CHRISTOPHER VINCENT DEMANNO,

 Appellee

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1425 MDA 2014

Appeal from the Order Entered August 7, 2014,

in the Court of Common Pleas of Clinton County, 

Criminal Division at No(s): CP-18-MD-0000123-2014

BEFORE: S HOGAN, WECHT, and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED MAY 13, 2015

I respectfully dissent.

I acknowledge that this Court is not required to accept the 

Commonwealth’s certification that the trial court’s order will terminate or 

substantially handicap the prosecution. See, e.g., Commonwealth v. 

Wright, 99 A.3d 565, 568 n.1 (Pa. Super. 2014) (“While the 

Commonwealth's good faith certification under Rule 311(d) is entitled to 

some deference, this Court need not accept its good faith certification in 

every case.”). However, I believe that we should accept the 

Commonwealth’s certification in this case and conclude that this Court has 

jurisdiction over the appeal pursuant to Pa.R.A.P. 311(d). 

The MDJ dismissed the charges against Appellee, concluding that the 

Commonwealth failed to present a prima facie case against him. In my 
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view, it is more than reasonable to believe that, if that MDJ is presented with 

the same evidence and the same charges at a second preliminary hearing, 

the MDJ again will dismiss the charges against Appellee. Thus, the trial 

court’s order denying the Commonwealth’s motion for the temporary 

assignment of an issuing authority has the practical effect of terminating the 

Commonwealth’s case against Appellee. For these reasons, I am satisfied 

that this Court has jurisdiction to reach the merits of the Commonwealth’s 

appeal. Cf. Commonwealth v. Wright, 910 A.2d 648, 653-55 (Pa. 2006) 

(plurality opinion) (holding that the Commonwealth could appeal pursuant to 

Pa.R.A.P. 311(d) from an order denying the Commonwealth’s motion to 

recuse).

As to the merits of the Commonwealth’s claims, I agree with the 

Commonwealth that the trial court utilized an improper standard in denying 

the motion for the temporary assignment of an issuing authority. The trial 

court denied the Commonwealth’s motion based upon a determination that 

the Commonwealth failed to present any evidence that the MDJ was partial 

or biased. In my view, the court should have examined whether the 

Commonwealth made a good faith allegation that the MDJ erred by 

dismissing Appellee’s charges. See Commonwealth v. Shoop, 617 A.2d 

351, 353 (Pa. Super. 1992) (“[W]here the Commonwealth in good faith 

alleges improper dismissal by a district justice, it must have the opportunity 

to bring the re-arrest before another district justice.”); see also
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Pa.R.Crim.P. 544 Comment (“Pursuant to paragraph (A), in the usual case, 

charges will be reinstituted by filing a complaint with the issuing authority 

who dismissed or permitted the withdrawal of the charges. However, there 

may be cases in which the attorney for the Commonwealth determines that 

a different issuing authority should conduct the preliminary hearing, such as 

when an error of law is made by the issuing authority in finding that 

the Commonwealth did not sustain its burden to establish a prima 

facie case. Paragraph (B) requires that, in these cases, the attorney for the 

Commonwealth must file a petition with the court of common pleas 

requesting that the president judge, or a judge designated by the president 

judge, assign a different issuing authority to conduct the preliminary 

hearing.”) (emphasis added).

After a review of the record, I conclude that the Commonwealth did 

make a good faith allegation that the MDJ erred by finding that the 

Commonwealth failed to establish a prima facie case against Appellee. 

Accordingly, I would reverse the trial court’s order.